WHITACRE v. AARP
Page 2
before the iowa WORKERS’ COMPENSATION commissioner
___________________________________________________________________
:
DONALD WHITACRE, :
:
Claimant, :
:
vs. :
: File No. 5029751
AARP, :
: A P P E A L
Employer, :
: D E C I S I O N
and :
:
ARCH INSURANCE COMPANY, :
: Head Note No.: 1803
Insurance Carrier, :
Defendants. :
___________________________________________________________________
Defendants, AARP and Arch Insurance Company, appeal from an arbitration decision filed December 21, 2010, in which the presiding deputy commissioner found that claimant’s injury arose out of and occurred in the course of his employment on February 17, 2009, and that claimant was permanently and totally disabled as a result of his injury. Defendants assert on appeal that claimant’s injury did not arise out of his employment. Defendants assert that the presiding deputy erred in relying upon the agency’s decision in Albertson v. Benco Manufacturing, File No. 5010764 (App. July 27, 2007) because “the commissioner’s decision was obviously made without benefit of the guidance of the Iowa Supreme Court in Blue” – citing to Lakeside Casino v. Blue, 743 N.W.2d 169 (Iowa 2007). It is noted that the Supreme Courts’ decision in Blue was filed on November 9, 2007, subsequent to the decision of the agency. Defendants do not appeal the determination that claimant is permanently and totally disabled as a result of his fall on February 17, 2009, or contest the medical expenses. Claimant asserts on appeal that the presiding deputy commissioner correctly analyzed the facts in finding that claimant’s injury arose out of employment. The arguments of the parties have been considered and the record of evidence has been reviewed de novo.
Pursuant to Iowa Code sections 86.24 and 17A.15, I affirm and adopt as the final agency decision those portions of the proposed arbitration decision filed on December 21, 2010, that relate to issues properly raised on intra-agency appeal. Defendants’ assertion that any precedent of the Albertson decision was overruled by the Supreme Court’s decision in Blue is incorrect. In a judicial review decision of Albertson filed February 4, 2009, the Iowa Court of Appeals upheld the agency’s conclusion, relying upon Koehler Elec. v. Wills, 608 N.W.2d 1 (Iowa 2000) wherein an injury arises out of employment “for injuries resulting from risks personal to the claimant . . . where the employment . . . aggravates the injury.” The court of appeals fully considered the analysis provided in Blue, when it provided the following analysis on page 8 of the judicial review decision:
Koehler and the recent Lakeside Casino case both cite to and utilize the same language from Miedema when explaining the “arising out of” employment element. [Claimant] must prove . . . that a causal connection exists between the conditions of his employment and his injury. . . . In other words, the injury must not have coincidentally occurred while at work, but must in some way be caused by or related to the working environment or the conditions of his employment. Miedema, 551 N.W.2d at 311 (Iowa 1996); see also Lakeside Casino, 743 N.W.2d at 169, 174; Koehler, 608 N.W.2d at 3.
It is concluded that the presiding deputy commissioner’s finding that claimant’s injury arose out of his employment is supported by the preponderance of the evidence and relies upon the most recent analysis provided by the reviewing courts in both Blue and in the judicial review decision in Albertson. The findings of the presiding deputy are therefore affirmed.
IT IS THEREFORE ORDERED that the arbitration decision is AFFIRMED.
Defendants shall pay the costs of this matter and of the appeal, including the preparation of the hearing transcript.
Signed and filed this ____5th _______ day of December, 2011.
________________________________
CHRISTOPHER J. GODFREY
WORKERS’ COMPENSATION
COMMISSIONER
Copies To:
Mr. Phillip Vonderhaar
Attorney at Law
PO BOX 65488
West Des Moines, IA 50265-0488
Mr. Timothy W. Wegman
Attorney at Law
6800 Lake Dr, Ste 125
Des Moines, IA 50266-2504